Gulshan Kumar Mendiratta vs Union of India

MR. Justice R.K. Batta, Presiding Member-The complainant had initially filed claim petition before the Railway Claims Tribunal, but it was withdrawn with liberty to pursue the remedy in an appropriate Forum in accordance with law. This order of withdrawal is dated 23.5.2002. Thereafter, the complainant filed a complaint before this Commission.

COMPLAINANT No. 1 is the husband of the deceased Smt. Madhu Bala and complainant Nos. 2, 3 are daughter and son of the complainant No. 1 of the deceased. The deceased had a monthly seasonal ticket and was daily passenger to and fro Sonepat by train. According to the complainant, there are four railway lines at Narela Railway Station. Line Nos. 1, 2 are meant for Down trains and line Nos. 3, 4 are meant for up trains. In between these lines from Up and Down train, there is a high iron railings. The complainants have annexed a map showing the position of the Railway line.

ON 22.12.2000, the Asst. Station Master (ASM) on duty received goods train on platform No. 2, line No. 4 meant for Up train. However, line No. 3 was vacant and the goods train could be received on line No. 3 Up and there was no emergency or reason to receive the goods train on line No. 4, platform No. 2. It is further alleged that the ASM compelled the passengers to cross the railway lines in order to board the train. When the train arrived at line No. 3, the milk drums which were hanging outside the compartment''s ventilator bar hit the head of the passengers standing there. Wife of the complainant No. 1 was also hit by the milk drums and she died on the spot. The two other co-passengers Smt. Kamlesh Nijhawan and Smt. Neelam also received injuries.

ACCORDING to the complainant, the milk drums were permitted to be hung by the Railway Authorities outside the compartment''s ventilator bar and the same were hung illegally, unlawfully, arbitrarily and as such Railway Authority has been negligent in performing their duty, inasmuch as Railways are bound to take care of the safety of life and property of the passengers.

THE deceased Smt. Madhu Bala was a trained TGT teacher and was earning Rs. 10,703 p.m. She was 37 years old at the time of the accident and total compensation of Rs. 43 lakh has been claimed.

THE matter had initially proceeded ex parte against the Railways. However, the ex parte order was later set aside and the respondents were permitted to file reply. In reply, the main ground taken is that the complaint is not maintainable in view of Section 15 of the Railway Claims Tribunal Act, 1987, inasmuch as the incident in question is covered under Section 124 (A) of the Railways Act, 1989. On merits, it is urged that the Railway Authorities were not negligent in shifting the train from the normal line/platform to platform No. 3 without sufficient cause. It is alleged that as per orders of Section CNL, Goods Train No. UP DSEY-GVG+CDG (Full Load) was taken on line No. 4. The goods train could not depart due to busy line on Up direction. It is further submitted that the incident in question took place due to negligence of the complainant for which the Railways are not at all responsible. It is further alleged that constant public announcements were made for warning and cautioning the passengers not to stand on platform No. 3 as empty milk drums will be hanging outside the compartment, which may result in physical injury. It is interesting to note that the opposite parties have stated that it must be appreciated that the entire practice of milk drums hanging outside from the iron rods of the window by virtue of being in vogue for quite some time has acquired an acceptability considering the practicality in the given circumstances and particularly in view of paucity of space available in the compartment to carry or to keep the milk drums inside, which was resulting great inconvenience to the commuters. It is also stated that Railway Authorities from time-to-time have been resorting to punitive action against the milkman, but considering the intricacies and complexities of the problem involving the livelihood of thousands of milkmen and their families complete embargo on the practice is neither feasible nor possible.

THE complainants have filed rejoinder denying the averments made in the reply. The parties have filed affidavit evidence. Complainant No. 1 has filed his affidavit and of co-passenger Smt. Neelam who is stated to have suffered injuries in the same accident due to hitting of milk-cans which were hanging outside on the window bar of the compartment. The opposite party has filed a very brief affidavit of evidence. Arguments were heard:

COUNSEL for the complainants placed the facts before us and explained the same with reference to the sketch on record. He also drew out attention to FIR and urged that there is no whisper in the FIR relating to any announcement as is sought to be made out in the reply. According to him, it is a clear case of negligence and deficiency on the part of the Railways in not only taking the passenger train on line No. 3, which had no platform and permitting the goods train to come on line No. 4 which in fact had a platform and by permitting the milkman to hang their milk-cans on the bars outside window which is dangerous to safety and life of the passengers who have to board the train. He, therefore, urged that compensation claimed be granted.

COUNSEL for the opposite party urged before us that the complainant themselves in para 4 of the complaint, claimed that the deceased was passenger as defined under Section 24(A) Explanation (ii) of the Railways Act, 1989 and in view of Sections 13 and 15 of the Railway Claims Tribunal Act, 1987 read with Section 124 (A) of the Railways Act, 1989, this Commission does not have jurisdiction to entertain this complaint and the jurisdiction vests with Railway Claims Tribunal but the complainant who had initially approached Railway Claims Tribunal had withdrawn the complaint from there. He, further, pointed out that under Section 125 of the Railways Act, 1989, application for compensation under Section 124(A) may be made to the Claims Tribunal. Counsel for the opposite party relied upon para 5 of the affidavit evidence of Mahesh Chand Sharma (ASM), Narela Railway Station. He has concluded by the same at any rate the compensation payable is only Rs. 4 lakh in accordance with limit of compensation provided under Rule 4 of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. He has placed reliance the judgment of this Commission in Union of India and Anr. v. Smt. Krishna Devi and Anr., FA/252/2005, and connected appeal, which was decided on 8.12.2009. He also placed reliance of judgment of Bombay High Court in Union of India through its General Manager, South Central Railway, Secunderabad (A.P.) v. Ashok Shankar Sarkale and Ors., I (2007) CPJ 160 (DB)=IV (2006) ACC 788 (DB)=decided on 20.3.2006. We have gone through the record of the relevant provisions of the Acts and Rules.

THE factum of accident and the manner in which it has taken place is not disputed, though, the opposite parties alleged negligence on the part of Smt. Madhu Bala in not paying attention to the constant announcements made through public announcement system. Immediately after the incidence, FIR was lodged at 5.40 p.m. The incident had taken place at .1.45 p.m. The FIR was recorded under Sections 337 and 304 of IPC. The FIR was recorded on the basis of hand written statement of Shri Suraj Pal, ASM, Narela Railway Station. It was stated therein that about 1.45 p.m., IDPM passenger train reached on line No. 3 at Narela Railway Station from Delhi to Panipat since on platform No. 2, a train had already occupied line No. 4. He had announced that the passengers be careful before reaching the train but 3-4 ladies who were waiting for boarding the train under the flyover, opposite platform No. 2, besides the grills were hit by milk-cans which were hanging outside the compartments with the moving trains and the ladies fell down on the line due to hit on the head and one of the lady died on the spot due to injury on the head and the other lady was grievously hurt.

IN the light of the averments, we shall first take up the issue relating to jurisdiction raised by Counsel for the opposite party. According to the Counsel for the opposite party, the incident in question is covered under "Untoward Incident" in respect of which jurisdiction to entertain the complaint for compensation under Section 124(A) of the Railways Act, 1989 exclusively vest with the Railway Claims Tribunal in view of Section 13 and 15 of Railway Claims Tribunals Act, 1987 and as such the jurisdiction of the consumer fora is barred. He also relied upon para 4 of the complaint wherein the complainants claimed that Smt. Madhu Bala was passenger within the meaning of explanation to Section 124 (A) of the Railways Act, 1989.

THE relevant provisions may be noted namely Sections 123, 124, 124(A) and 125 of the Railways Act, 1989 which are as under: "123. Definitions-In this Chapter, unless the context otherwise requires- (a) "accident" means an accident of the nature described in Section 124; (b) "dependant" means any of the following relatives of a deceased passenger, namely- (i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent; (ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependent wholly or partly on the deceased passenger; (iii) a minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger; (iv) the paternal grand parent wholly dependant on the deceased passenger. (c) "untoward incident" means- (i) the Commission of a terrorist act within the meaning of Sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or (ii) the making of a violent attack or the Commission of robbery or dacoity; or (iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers.

Extent of liability-When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident. Explanation-For the purposes of this section "passenger" includes a railway servant on duty. 124A. Compensation on account of untoward incident-When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident. Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to- (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. Explanation-For the purposes of this section, "passenger" includes- (i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident. Comments (i) Section 124A provides that when in the course of working a Railways an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration, a passenger who was injured or filled is entitled for compensation; Union of India v. B. Koddekar, AIR 2003 AP 23. 125. Application for compensation-(1) An application for compensation under Section 124 (or Section 124A) may be made to the Claims Tribunal- (a) by the person who has sustained the injury or suffered any loss, or (b) by any agent duly authorized by such person in this behalf, or (c) where such person is a minor, by his guardian, or (d) where death has resulted from the accident, (or the untoward incident) by any dependant of the deceased or where such a dependent is a minor, by his guardian.

(2) Every application by a dependent for compensation under this section shall be for the benefit of every other dependant. Comments Clause (d) of Sub-section (1) provides that where death has resulted, any defendant can file an application. Sub-section (2) provides that an application for compensation under this section shall be for the benefit of every other dependent; S. Das (Smt.) v. Union of India, AIR 2003 Gau 11." The relevant provisions of the Section 13 and 15 of the Railway Claims Tribunal Act, 1987 are as under: "13. Jurisdiction, powers and authority of Claims Tribunal-The Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority as were exercisable immediately before that day by any Civil Court or a Claims Commissioner appointed under the provisions of the Railways Act- (a) relating to the responsibility of the railway administrations as carriers under Chapter VII of the Railways Act in respect of claims for- (i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway; (ii) compensation payable under Section 82A of the Railways Act or the rules made thereunder; and (b) In respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway. (1A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Section 124A of the Railways Act, 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court in respect of claims for compensation now payable by the railway administration under Section 124A of the said Act or the rules made thereunder. (2) The provisions of the {Railways Act, 1989 (24 of 1989)} and the rules made thereunder shall, so far as may be, be applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act.

Bar of jurisdiction-On and from the appointed day, no Court or other Authority shall have, or be entitled to, exercise any jurisdiction, powers or Authority in relation to the matters referred to in Sub-sections (1) and (1A) of Section 13.

KEEPING in mind the admitted facts, the incident in question can by no stretch of imagination, the covered under the Expression "untoward incident" since the incident does not fall in any of the categories which covered "untoward incident" thereunder. The incident in question is covered by the expression accident of the nature described in Section 124 of the Railways Act, 1989. Section 13 of the Railway Claims Tribunal Act, 1987 lays down jurisdiction, powers and authority of Claims Tribunal. The incident in question does not fall under Section 13(1A) of the Railway Claims Tribunal Act, 1987.

SECTION 15 of the Railway Claims Tribunal Act, 1987, bars jurisdiction of Court and another authority in relation to matters referred to in Sub-sections (1) and (1A) of Section 13 of the said Act. We have already pointed out that the incident in question does not come within the scope and ambit of "untoward incident". Though, the Section 125 of the Railways Act, 1989 provides that an application for compensation under Section 124 and Section 124(A) may be made to the Claims Tribunal, yet, the Railway Claims Tribunal Act, 1987 does not bar the jurisdiction of Court or other authority in relation to claim under Section 124 of the Railways Act, 1989. Section 3 of the Consumer Protection Act, 1986 provides additional remedy to the consumer and as such the consumer fora, in our opinion are competent to entertain claims covered and filed under Section 124 of the Railways Act, 1989.

IN view of the above, we do not find any merit in the objection raised by the opposite party, insofar as jurisdiction to entertain the matter in question is concerned.

ADMITTEDLY, the platform is adjacent to line No. 4 and there is no platform towards line No. 3. Obviously, the passenger train must be taken on the line adjacent to platform. However, Railways took the goods train on line No. 4, which was adjacent to the platform and the passenger train was put on line No. 3 which had no platform as such. This itself shows deficiency in service on the part of the Railways and we are not satisfied with the explanation of the Railways that the goods train was taken pursuant to orders of Section CNL at 13.30 hrs. and that it was to remain there upto 1.45 p.m. The passenger train was scheduled to come at 1.45 p.m. Therefore, there was no reason as to why the goods train was taken on line No. 4 adjacent to the platform and the passenger train was taken to line No. 3. Assuming that the goods train could not move from line No. 4 till 1.45 p.m., the passenger train certainly could be taken on platform No. 4 after the departure of goods train at 1.45 p.m. However, the convenience of the passengers was totally ignored, inasmuch as the passengers were standing on platform No. 2, line No. 4 were required to cross the railway line in order to reach line No. 3. This is hazardous for the safety of the passengers. In the FIR, it is merely stated that it was announced that the passengers should be careful before reaching the train. However, in the reply of the affidavit evidence, it is stated that it was announced on public announcement system that the passengers should not stand on platform No. 3 (line No. 3) as empty milk drums were hanging outside the compartment, which might result in physical injuries. Even assuming such announcement was made, is it sufficient to ensure the safety of the life of the passenger. The Railways should have ensured with the help of its personnel that the passengers follow the said announcement, if at all such announcement was made.

THE opposite parties have taken the stand that the milkman for considerable period of time have been keeping their milk drums hanging outside from the iron rods of the window and such practice by virtue of being in vogue for quite sometime has acquired an acceptability considering the practicality in the given circumstances and particularly in view of paucity of space available in the compartment to carry or to keep the milk drums inside, thereby causing a great inconvenience to the commuters. What an explanation to shrink its responsibility on the part of the Railways and we are rather amused with such stand. It is bounden duty of the Railways to ensure that nothing is hung outside the Railway compartment, which may injure the passengers. The opposite parties are trying to give colour of legality to such illegal practice by explanation which is not acceptable, keeping in view the safety of the passengers. The "Chalta hai" approach by the Authorities is deprecated and has to stop. Where there is will, there is way and the stand of Railways that complete embargo on the practice is neither feasible nor possible is not acceptable. In our opinion, it is a clear case of negligence on the part of the Railways to allow the milkmen to carry the milk-cans on the bar outside the window which is hazardous to life and safety of the passengers.

IN the case of Union of India through its General Manager, South Central Railway, Secunderabad (A.P) v. Ashok Shankar Sarkale and Ors. (supra), Hon''ble Bombay High Court did not relegate the complainant to approach Railway Claims Tribunal even after coming to the conclusion that the Consumer Fora had no jurisdiction in the said matter and awarded compensation of Rs. 4 lakh.

COMING to the compensation claimed, Counsel for the complainant has submitted that the deceased was 35 years old and 27 years of service was left; that the deceased was earning total salary of Rs. 10,703 p.m. and multiplying the same by 12 months x 27 years, it comes to Rs. 34,67,772. After deducting 1/3rd from the same, which the deceased would have spent on her, the complainant would be entitled to a sum of Rs. 24 lakh. In addition, the deceased was entitled to gratuity of Rs. 10 lakh, increments, promotion and increase in DA, etc. to the tune of Rs. 10 lakh and interest on the total amount at Rs. 5 lakh and besides this, Rs. 5 lakh for mental agony, pain and physical sufferings as well as cost of litigation. Thus, according to the Counsel for the complainant, the complainants are entitled to total compensation of Rs. 54 lakh. In the complaint, the complainant had claimed total compensation of Rs. 43 lakh. However, Rule 4 of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, limits the compensation to Rs. 4 lakh in case of death. Therefore, in our opinion, compensation will have to be restricted to what is provided under the said Rules, inasmuch as, this Commission does not have power to strike down or declare Rule relating to compensation as void or ultra virus, though, in our opinion, such compensation requires revision, inasmuch as two decades have passed since the restriction of limits of compensation was fixed.

FOR the aforesaid reasons, complaint is allowed to the extent of payment of compensation of Rs. 4 lakh by the opposite parties to the complainants. The said compensation shall carry simple interest of 9% p.a. from the date of the accident till the said amount is paid. The cost shall be borne by the opposite parties, which are fixed at Rs. 25,000 to be paid by the opposite parties to the complainants.